When the evidence is undisputed that the claimant gave notice to the employer as required by the Workmen's Compensation Act within 30 days after the accident, an appeal by the employer from an award of the board on the ground that the required notice was not given immediately or as soon after the accident as practicable is without reasonable ground; the superior court is authorized to assess reasonable attorney's fees for the claimant; the appellant cannot reasonably anticipate a reversal of the trial court's judgment; and the Court of Appeals will assess damages as provided by law.
The employer and insurer appeal from a judgment affirming an award of the State Board of Workmen's Compensation and granting the claimant attorney's fees on account of the appeal to the superior court.
1. The ground of the appeal to the superior court which is enumerated as error in this court is that there is no evidence to support the award. The argument for this ground is that the employee did not give notice to the employer "immediately on the occurrence of [the] accident, or as soon thereafter as practicable," in accordance with the Workmen's Compensation Act (Ga. L. 1920, p. 180, as amended; Code 114-303).
The cited section of the Act provides that "until such notice is given the employee shall not be entitled to any physician's fees nor to any compensation which may have accrued under the terms of this law prior to the giving of such notice . . . No compensation will be payable unless such notice, either oral or written, is given within 30 days after the occurrence of the accident . . ." (Emphasis supplied.) In this case there was evidence that claimant had an accident and injury at work during the week and stopped work on Friday, April 22. The insurer's evidence shows that the employer had received letters from the claimant informing it of his injury, from which it made an accident report to the insurer on May 9 and referred the claimant to a doctor with the following statement to the doctor: "The bearer . . . whose occupation is mechanic, alleges that he was injured while in our employ on April 22, 1966. Please give him medical attention and mail this card at once if the injury is not the result of his employment. This order shall supply only as a request for examination and report at the expense of Federated Mutual . . ."
It is doubtful that the notice which the claimant testified he gave Saturday, April 23, by telephone of his inability to come to work, would meet the test of a "notice of an injury by accident arising out of and in the course of the employment." See Hoard v. Phoenix Assur. Co., 117 Ga. App. 383
, 384 (160 SE2d 621
). However, the Act does not require both personal and written notice meeting this test as a condition of compensation, and it is clear from the decisions that if the employee gives such notice, personal or written, within 30 days and shows that his accidental injury arose from his employment, he is entitled to compensation. Ocean Acc. &c. Corp. v. Martin, 35 Ga. App. 504 (134 SE 174)
; Bryant v. J. C. Distributors, 108 Ga. App. 401
, 403 (133 SE2d 109
); Cofield v. Liberty Mat. Ins. Co., 110 Ga. App. 225
, 226 (138 SE2d 115
The employer argues that there was evidence of circumstances that would create an issue whether the employee had an accident at work; he does not argue that the evidence demanded a finding that there was no accident. Unquestionably there was direct evidence supporting the finding of an accident. The insurer does not contend, in fact, that the evidence on the essential elements of the case other than notice would not authorize an award.
The evidence is undisputed and the employer and insurer admit that the claimant gave the notice required within 30 days after the injury; it demanded a finding in favor of the claimant on this issue. It is clear from the terms of the notice provision of the statute, supra, that only when there is a failure to give the required notice within 30 days after an accident will no compensation be payable; and numerous decisions have confirmed the patent import of the statute. See cases cited supra. Failure to give notice immediately or as soon after the accident as practicable disqualifies the claimant for physician's fees and compensation accruing prior to his giving notice.
2. The appellee has made a motion in this court for damages on the ground that there is no reasonable basis in fact or in law for the appeal. For the reasons stated above, we cannot see that there was any good reason for anticipating a reversal of the judgment of the trial court, and we agree with the appellee's ground for damages. Accordingly damages of ten percent are awarded under Code 6-1801. Rahal v. Titus, 110 Ga. App. 122
, 133 (138 SE2d 68
Judgment affirmed. Bell, P. J., and Quillian, J., concur.